Lots of people are wondering who the President will pick to replace Justice O’Connor now that John Roberts is well on the way to confirmation as Chief Justice. I don’t have any special insight about who the President will choose: the President can consider any range of different personal and political factors. But if special insight is far beyond my ability, amateurish speculation based on a questionable assumption is not. So here is a little amateurish speculation based on a questionable assumption.
Specifically, let’s assume that the President is motivated purely by political considerations, both in terms of short-term goals such as the satisfaction of interest groups and the long-term goal of influencing the law. If those are the President’s concerns, who among the names on the short list should he choose? I think the smartest pick would be Michael McConnell of the Tenth Circuit.
Here’s my thinking, starting with the long-term considerations and then turning to the short-term considerations:
1. McConnell is conservative enough to be a key conservative vote in lots of important cases, but not so conservative that he would alienate a centrist like Justice Kennedy. The basic math here is counting to five; moving the law in a particular direction at the Court requires a particular distribution of viewpoints rather than a strength of them. A more conservative nominee doesn’t mean a more conservative court, as what matters is the viewpoint of the center rather than the edges. McConnell is probably conservative enough to be a conservative vote in most of the kinds of cases in which five conservative votes are going to be feasible.
2. McConnell would likely be a key ally of Chief Justice Roberts. My sense is that McConnell’s views of the law are roughly in the Roberts camp: conservative but institutionalist.
3. McConnell is by all accounts quite brilliant, and his intellectual leadership (together with Roberts’) could help influence trends in American legal thought for a generation.
4. Moving on to short-term considerations, a McConnell nomination would be controversial enough to please the Right, but uncontroversial enough that McConnell would likely be confirmed. Specifically, McConnell has been outspoken about abortion, but is also an extremely bright and and articulate person who has considerable bipartisan support.
5. McConnell would stand up well to harsh questioning in Senate confirmation hearings. He would provide a good contrast with Roberts, too. While McConnell is just as sharp, balanced, and articulate as Roberts, he is less suave and more direct.
6. Although McConnell is a white male, my sense is that nominating another white male won’t have significant political ramifications for the Administration. I’m no expert on such questions, but I don’t think there are many people who are hinging their support for the Administration on the race or gender of its Supreme Court nominees. Those on the right want a conservative; those on the left would be relieved to have a more moderate white male rather than a more conservative nominee who is a woman or a member of a minority group.
That’s my amateurish speculation, anyway. As always, comments welcome.
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